Sexual Freedom for Consenting Adults--Why Not? Thomas T

McGeorge Law Review

Volume 2 | Issue 1 Article 13

1-1-1971 Sexual Freedom for Consenting Adults--Why Not? Thomas T. Couris University of the Pacific; cGeM orge School of Law

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Social attitudes of contemporary Americans have evolved away from many of the sexual biases derived from Victorian heritage. Sexual behavior, once a forbidden topic, is now openly explored. With man's increased awareness concerning sexual attitudes it be- comes increasingly difficult if not impossible to identify forms of sexual behavior that are "deviant". The Californialegislature, with the recent introduction of a measure to reform California laws on deviant sexual acts, has shown some awareness of changing social attitudes toward sexual behavior. This comment attempts to set out the reasons why reform of California's anachronistic penal laws proscribing certain sexual behavior between consenting adults is necessary.

It is a crime to call sin a crime, and a sin to let real crime go unpunished because of a passion for ferreting out sin.1

With the increased liberalism in society's attitudes towards sex, pressure has been exerted on the legislature to reform California's ar- chaic penal sanctions proscribing deviant sexual behavior. In both the 1969 and 1970 sessions of the legislature, bills have been introduced proposing modernization of the statutes by deleting provisions which are no longer enforced.2 Assemblyman Willie Brown of San Francisco in- tr6duced these bills' proposing to terminate the existing discrimination against "minority groups" (homosexuals) and to eliminate the "hypocrisy" in the law. 4 His attempts proved unsuccessful. The bill intro-

1 McCabe, The Fearless Spectator, San Francisco Chronicle, February 25, 1970, at 35. 2 CAL. PEN. CODE §§ 286, 288a, presently make no distinction between heterosexual and homosexual acts, or relationships of the parties involved; however as will be pointed out enforcement of these statutes against these different groups is far from equal. 3 A.B. 743, 1969 Regular Session; A.B. 701, 1970 Regular Session. 4 Bill to Legalize Homosexuality, San Francisco Chronicle, March 3, 1969, quote by Assemblyman Willie L. Brown, Jr.: "They tend to treat them (homosexuals) as they do blacks and other minorities-as less than human beings." See also Horton, San Francisco Takes Care of Its Own, Sacramento Union, March 19, 1969, at 10 where Brown said: "I think we should eliminate as much as we can the hypocrisy in our laws. Obviously, this is one of the most hypocritical areas .... [We should eliminate laws that demean both the enforcer and the person against whom it is enforced-where there is no victim." 1971 / Sexual Freedom for Consenting Adults duced in the 1969 session received no support and died in the Crimi- nal Procedure Committee. The same fate befell the 1970 bill; however, at one point early in the session indications were that the measure would come out of committee and reach the assembly floor. There were some off the record comments from individuals associated with the Criminal Procedure Committee to the effect that, if the author (Brown) could muster the necessary 41 votes to pass the bill out of the assembly, the chairman of the Criminal Procedure Committee could assure passage of the bill out of committee. During an election year however, this possibility was just a vain gesture and served as another method to "kill" proposed legislation without putting the blame directly on anyone. The 1970 bill, a duplicate of the 1969 bill, proposes the following changes to the present law: (a) deviant sexual acts between consenting adults would no longer be considered a crime. No distinction is made as to the sexes of the parties involved (homosexual or heterosexual acts) or their relationships; (b) the term "infamous crime against nature" presently in our penal code would be deleted and the code would instead provide for an offense termed sodomy-defined in the code as anal intercourse between humans; (c) oral copulation would be a crime under the same circumstances as sodomy. The special circumstances under which sodomy or oral copulation would be punishable and the degree of punishment imposed were: first, if one of the parties was under 18 and more than three years younger than the other, then the maximum prison term would be 15 years; or, second, if one of the parties was under 14 and more than ten years younger than the other, then the prison term would be three years to life. A third punishable offense would require the use of force, violence, duress, menace or threat of great bodily harm by one of the parties. The latter offense would not have included any age limitation and would have subjected offenders to a prison sentence of from three years to life. The effect of this proposed legislation would be to re-define deviant sexual acts and eliminate provisions from the present statutes which are no longer enforced.' The American Law Institute in a 1955 draft excluded from its category of punishable sex crimes private homosexual sex conduct not in-

5 Present statutes (see note 2 supra) make no distinction as to the relationships of the parties thereby allowing prosecutions for deviant sexual acts committed between husband and wife, as well as between parties of the same sex. Pacific Law Journal / Vol. 2 volving force, imposition or corruption of the young., The reasons given were that the existing law is for the most part unenforced, and there is no prospect of real enforcement except in cases involving violence, corruption of minors, or public solicitation. Under section 213.2 of the 1962 official draft of the Model Penal Code, deviate sexual intercourse is made punishable only when committed by force or its equivalent. 7 Force or its equivalent includes threats of death or serious bodily harm, and impairment of one's control by use of stimulants, drugs, or intoxicants. Subdivision 2 covers commission of deviant sexual intercourse upon one suffering from a mental disease or defect of which the actor is aware. The draft deals with corruption of minors under section 213.3 setting out the parties, ages and relationships constituting a violation of the code.8 Legislation which substantially follows the recommendations of the American Law Institute has been proposed by states other than Cali- fornia. Illinois,' Minnesota,' and New York" have enacted statutes nearly identical with the Model Code provisions. The statutes of these three states provide no penalty for deviant consensual sex acts committed in private. Rather, the statutes direct their attention toward protecting society's interest in being free from overt sexual aggression, the protection of minors and the protection against public displays. In addition to this more practical approach adopted in three of the major states of the United States, some major European countries have also enacted statutes regarding sexual conduct which treat the problem in the manner of the Model Code, punishing deviant sex acts only when committed by force or violence, or with minors, or in public.' " Dur- ing a recent world-wide seminar in which fifty countries were officially represented a resolution was adopted by the body which expressly de- lineated the situations where deviant sexual behavior should be punishable.'" In light of the significant evidence that many authorities believe

6 AMERICAN LAw INSmTTUTE, MODEL PENAL CODE § 207.5, Comment (Tent. Draft No. 4, 1955). 7 MODEL PENAL CODE, § 213.2, (Official Draft, 1962). 8 Id. at § 213.3. 9 ILL. REV. STAT. ch. 38, § 11. 10 MINN. CRim. CODE § 609.30. 11 N.Y. PEN. CODE § 135.00. 12 Report to the Hague: Suggested Revisions of Penal Laws Relating to Sex Crimes and Crimes Against the Family, 50 CORNELL L. QUARTERLY 425, 439, n. 16 (1965). 13 Id. at 441, where the following resolution was adopted: The criminal law should prohibit deviant and homosexual behavior under the following circumstances: a. Where force or violence is used to compel deviant or homosexual behavior. b. Where a minor is involved in homosexual or deviant behavior by an adult. 1971 / Sexual Freedom for Consenting Adults laws regulating sexual deviant conduct are a proper area for reform, reform is dreadfully slow in coming. One might suggest an analogy to the historic M'Naghten test for insanity. Despite the evolution of social awareness that the rule, strictly applied, failed to serve the true ends of justice, the social attitudes and limited scientific knowledge of the 1840's has been allowed an imposing position in contemporary Ameri- can jurisprudence. 14 To appreciate the reasoning asserted to justify reform of the present California law attention must first be directed toward the problem of resolving what deviant sexual conduct is and when it is proscribed. Second, and more important is the consideration of the historical background and the impact of social attitudes on the development of the penal sanctions.

The Meaning of Deviant Sexual Conduct Deviant sexual behavior, as proscribed by modem statutes, is a rather vague concept at best. This label, deviant sexual behavior, applies to several different sexual acts. The obvious question to be resolved is. what is the "existing standard" from which one may deviate? A simple definition of this "existing standard" (making it possible to distinguish natural from unnatural acts) is that any sex act not furthering the primary function of sex, (procreation) is deviant and punishable. 5 Applying this existing standard, the following acts have been cate- gorized as deviant:"8 (1) Oral copulation, which is the act of copulating the mouth of one person with the sexual organ of another.'7 Oral copulation can be further separated into fellatio and cunnilingus. Fellatio is the sexual act consummated between the male sex organ of one person and the mouth of another, 8 and cunnilingus is committed with the mouth and female sex organ. 9

c. Where an individual in a position of trust and confidence abuses his position and involves his ward or the person entrusted to his care in deviant or homosexual behavior. d. Where the homosexual or deviant behavior occurs openly causing a public scandal or disturbance. e. Where the homosexual or deviant behavior involves prostitution com- mercialization. Homosexual behavior either male or female between consenting adults which does not violate any of the aforementioned elements should not be prohibited by the criminal law. 14 See GUTrMACHER & WEIHOFERR, PSYCHIATRY AND THE LAW 401-420 (1952). 15 A. KINSEY, W. POMEROY, C. MARTIN, AND P. GEBHARD, SEXUAL BEHAVIOR IN THE HUMAN FEMALE (1953) [hereinafter cited as KINSEY, FEMALE]. 18 It should be noted at this point that this comment when referring to deviant sexual conduct does not include masochistic or sadistic acts or acts involving physical pain to one of the parties involved for purposes of sexual pleasure. 17 Black's Law Dictionary 445 (Rev. 4th ed. 1951). 18 Id. at 743. 19 Id. at 456. Pacific Law Journal / Vol. 2

(2) Anal intercourse (buggery) is another type of deviant sexual behavior and is committed with the male sex organ and the anus of 20 another. (3) Beastiality, is the third type of deviant conduct. It consists of carnal copulation of a human being with a brute or animal of the sub- 21 human orders of the opposite sex. The above acts may be committed by either a homosexual couple or a heterosexual couple or any combination thereof. 22 The law, as will be observed, does not distinguish the relationships of the parties when defining deviant conduct. 23 Strict interpretation of the statutes makes a married couple committing any of the above defined acts just as guilty as a non-married couple and, heterosexuals are as guilty as homosexuals. In addition to the homosexual and heterosexual classification, a further complication occurs where one of the parties is a minor.2 4 (Acts with minors are necessarily a separate category. Advocates for legalizing private deviant acts have no inclination to alter or reduce punishment 25 for acts involving a minor).

HistoricalDevelop~ment of Penal SanctionsAgainst Deviant Sexual Behavior Homosexuality has been condemned as "that abominable sin not fit to be named among Christians. ' 26 The historical development of the law is rooted in the early English common law and throughout this de-

20 Id. at 243. 21 Id. at 203. 22 "Homosexual" is usually referred to when speaking of malcs, whereas, the term "Lesbian" connotes female relationships. 23 Hefner, The Legal Enforcement of Morality, 40 U. CoLo. L. REV. 199, 212 (1968). [hereinafter cited as Hefner]: what is even less clearly recognized is that of all these statutes forbidding sodomy, only New York's makes a distinction between the married and the unmarried (footnote omitted). Our state governments thus specify, quite literally, where a husband and wife may, and may not, kiss one another and the manner in which the sex act may be initiated and carried out in the marriage bed without becoming illegal. 24 Deviant sexual conduct with minors can be further classified as heterosexual and homosexual. Laws prohibiting homosexual acts involving a minor, either as a consenting party, or under duress, are usually more stringently enforced and vigorously prosecuted than are laws prohibiting consensual heterosexual acts involving a minor. Comment, Private Consensual Homosexual Behavior: The Crime and Its Enforce- ment, 70 YALE L.J. 623 (1961). 25 CAL. PEN. CODE §§ 261-264.1. Under these rape provisions, heterosexual conduct with a minor is punishable. At the same time, providing the sexual act is punishable pursuant to one of the previously defined deviant acts (Cal. Pen. Code §§ 286, 288a) the actor could conceivably be prosecuted under either th6 Penal Code provisions for rape or these deviant sexual conduct statutes, or both. Inevitably a rape conviction is usually sought. Heterosexual acts involving a minor are usually punishable under a different Penal Code section. 26 THE HOLY BIBLE, Leviticus 20:13 (King James version). See also M. HOFF- mAN, THE GAY WoRLD 100 (1968) [hereinafter cited as GAY WORLD]. 1971 / Sexual Freedom for Consenting Adults velopment, the Church has played an influential role.27 The Church's moral doctrines are best expressed by the oft-quoted biblical phrase, "Thou shalt not lie with mankind as with womankind: it is abomina- tion. '28 The Church's influence has not only affected the making of the law, but also its interpretation. The courts from the time of Lord Coke have developed a reluctance to be specific as to which acts are forbidden.29 Such phrases as the "abominable and detestable crime against nature" began to appear in state statutes with increased frequency. 0 Arguably, the Church's own inability to cope with the problem of clearly-defining those acts looked upon as "unnatural" resulted in the development of an attitude by the courts of deliberate vagueness and led judges to make such statements as, "We regret that the impor- tance of this question renders it necessary to soil the pages of our reports with a discussion of a subject (oral-genital contact) so loathsome and disgusting as the one confronting us."'"

27 KINSEY, FEMALE at 482-483 where it was concluded that the historical influence of religious groups demonstrates that condemnation of homosexual activities found its origin in the Seventh Century B.C.: Both mouth-genital contacts and homosexual activities had previously been associated with the Jewish religious service, as they had been with the religious services of most of the other peoples of that part of Asia, and just as they have been in many other cultures elsewhere in the world. In the wave of nationalism which was then developing among the Jewish people, there was an attempt to dis-identify themselves with their neighbors by breaking with many of the customs which they had previously shared with them. Many of the Talmudic condemnations were based on the fact that such activities represented the way of the Canaanite, the way of the Chaldean, the way of the pagan, and they were originally condemned as a form of idolatry rather than a sexual crime. Throughout the Middle Ages, homosexuality was associated with heresay. The reform in the custom soon, however, became a matter of morals, and finally a question for action under criminal law. Jewish sex codes were brought over into Christian codes by the early adherents of the Church, including St. Paul, who had been raised in the Jewish tradition on matters of sex. The Catholic sex code is an almost pre- cise continuation of the more ecclesiastic law and dominated on all questions of morals and subsequently became the basis for the English common law, the statute laws of England, and the laws of the various states of the United States. This accounts for the considerable conformity between the Talmudic and Catholic codes and the present-day statute law on sex, including laws on homosexual activity. 28 Leviticus 18:22. 29 M. PLOSCOWE, SEX AND THE LAW (rev. ed. 1962): Ever since Lord Coke's time, the attitude of judges has been that sodomy is "a detestable and abominable sin among Christians not to be named." The result of this attitude is a sharp departure from the usual rules of criminal pleading. It is one of the basic cannons of criminal procedure that a defendant is entitled to know the particulars of the crime charged against him.... But when a man is charged with sodomy or a crime against nature, an indictment in the language of the statute is enough. It is enough that the indictment alleges that at a particular time and place the defendant committed a "crime against nature" with a specific person. The defendant need not be informed of the particular sexual perversion which is charged against him. 30 Presently the following states use the term "crime against nature": Arizona, Colorado, Delaware, Florida, Idaho, Kansas, Louisiana, Maine, Michigan, Missouri, Montana, Nevada, N. Carolina, Oklahoma, Rhode Island, South Dakota, Tennessee, Virginia, W. Virginia. 31 State v. Whitmarsh, 26 S.D. 426, 429, 128 N.W. 580, 581 (1910). Pacific Law Journal / Vol. 2

There has generally been a lack of certainty in statements identifying what acts are actually prohibited. An example of this confusion is ap- parent in the statutes originating during Henry VIII's reign which referred to acts with beasts or buggery of man as crimes against nature but contained no proscription of oral-genital acts.3 2 This omission, coupled with the fact that there was no distinction between homosexual and heterosexual activity in the statutes, created a paradox for that era.3 3 A situation could have existed where a man who performed anal intercourse with his wife was guilty of sodomy.3 4 But a homosexual pair performing mutual fellatio were not engaged in illegal conduct.3 Although the law did not, nor does it today, distinguish between homosexual and heterosexual conduct, the law has not been equally enforced between the two groups.3 6 The following rationale is reflective of that point: In the enforcement of the laws ... a disporportionately high percentage of sodomy arrests and convictions involve homosexual contacts-presumably because a heterosexual cop and a heterosexual judge find a homosexual crime against nature a good deal more abominable and detestable than a heterosexual one.37 Perhaps human nature has influenced the decisions of the persons responsible for enforcing the laws.

PresentLaws ConcerningDeviant Sexual Behavior And Their Enforcement The laws in California proscribing deviant sexual acts are Penal Code section 286, which makes the "infamous crime against nature" a felony," and Penal Code section 288a, which defines sex perversion

32 Hefner at 211: Although English common law, from Which our statutes on the subject are derived, defined and prohibited only buggery with mankind or beast as "the crime against nature", which act carried the death penalty, a majority of the present-day American statutes include both oral and anal intercourse under sodomy. 33 GAY WORLD at 79-80; R. PERKINS, CRIMINAL LAW AND PROCEDURE 206 (3rd ed. 1966). 34 Sodomy, for purposes of this paper, is defined as a carnal copulation by human beings with each other against nature, or with beast. It is often used as meaning "the crime against nature", or carnal copulation by man with man, or, in the same unnatural manner with woman or with a beast. See Br~cr's LAw DICTiONARY 1563 (Rev. 4th ed. 1951). 35 GAY WORLD at 80-81. 36 KiNsEY, FEMALE at 483; Cantor, Deviation and the Criminal Law, 55 J.C.L. 441, 451 (1964). 37 Hefner at 215. 38 CAL. PEN. CODE § 286. Sodomy; punishment Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison for not less than one year. 1971 / Sexual Freedom for Consenting Adults and makes oral copulation a crime.3 9 Neither section distinguishes between the sex or relationship of the parties. A general reluctance on the part of the legislature to clearly define the "infamous crimes against nature" has resulted in ambiguity in the statutes and confusion for the public. Perhaps the legislature is to blame.40 However, a logical assumption would be that the historic development of deviant sexual behavior laws was so strongly influenced by the Church, that these religious overtones still remain. Conse- quently, the statutes today reflect a confused mixture of sin and crime sprinkled with religious views from various periods of society. Not only has the legislature been reluctant to limit this broad statute, but the courts, typically the protectors of society when the lawmakers traverse beyond permitted limits, have acquiesced at the legislature's continued vagueness in defining deviant sexual behavior. Note the Courts conclusion in Honselman v. People:41 It was never the practice to describe the particular manner or the details of the commission of the act, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of different acts which may go to constitute it. A statement of the offense in the language of the 42 statute. . . is all that is required. This is a drastic departure from the approach by courts when con-

39 CAL. PEN. CODE § 288a. Perversion; copulation with the mouth; punishment Any person participating in an act of copulating the mouth of one person with the sexual organ of another is punishable by imprisonment in the state prison for not exceeding 15 years, or by imprisonment in the county jail not to exceed one year; provided, however, whenever any person is found guilty of the offense specified herein, and it is charged and admitted or found to be true that he is more than 10 years older than his coparticipant in such an act, which coparticipant is under the age of 14, or that he has compelled the other's participation in such an act by force, violence, duress, menace, or threat of great bodily harm, he shall be punished by imprisonment in the state prison for not less than three years. The order of commitment shall expressly state whether a person convicted hereunder is more than 10 years older than his coparticipant and whether such coparticipant is under the age of 14. The order shall also state whether a person convicted hereunder has compelled coparticipation in his act by force, violence, duress, menace, or threat of great bodily harm. 40 Hefner at 211: Some of the legislators responsible for initiating and passing the statutes were apparently so embarrassed by the whole business that they offered no further clue to the nature of the crime, except to state that it was illegal if perpetrated "with mankind or beast." 41 Honselman v. People, 168 Ill. 172, 48 N.E. 304 (1897). 42 Id. at 174. Pacific Law Journal / Vol. 2

fronted with many penal statutes which fail to provide sufficient clarity.4 3 Notwithstanding the possibility of broad application of laws prohibiting sexual deviant conduct case law has made enforcement of such laws against deviant sexual acts virtually impossible when committed in private. The statutes4 fail to distinguish between public and private acts, however, courts, recognizing the constitutional right to privacy have struck down enforcement techniques regarding private conduct under the fourth amendment search and seizure prohibitions4' as an unwar- ranted intrusion upon that basic right to a reasonable expectation of 46 privacy. In order to invade the privacy of a "private place" such as a home or apartment, an officer must either obtain an arrest warrant or have probable cause for entering to make an arrest. Entry must be preceded by compliance with knock and announcement requirements of Penal Code section 844. Because consensual deviant sexual acts lack a complaining party, arrest warrants are rarely obtained.4 7 Unless the parties are extremely careless deviant sexual acts committed in private go unpunished .4 Therefore, the application of the deviant sexual conduct sanctions appears to be limited only to those acts committed in public. Authorities contend that nearly all public deviant sex conduct involves homosexual acts of one form or another. Thus, be it a result of enforcement or judicial fiat, the meaning of deviant sexual conduct in society is synonymous to homosexual conduct. 9

43 When dealing with sanctions abridging the 1st amendment freedom of speech, the court has shown little reluctance to strike down vague statutes. See Stromberg v. California, 283 U.S. 359, 369 (1931). 44 CAL. PEN. CODE §§ 286, 288a. 45 U.S. CONST. amend. IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or af- firmation, and particularly describing the place to be searched, and the persons or things to be seized. 40 Mapp v. Ohio, 367 U.S. 643 (1961); Wolf v. Colorado, 338 U.S. 25 (1949); Ker v. California, 374 U.S. 23 (1963). 47 Symposium, The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 U.C.L.A. L. REV. 718, n.199 (1966) [hereinafter cited as 13 U.C.L.A. L. Rnv.]. 48 People v. Earl, 216 Cal. App. 2d 607 (1963). 49 Although there are cases on the books where heterosexual couples have been prosecuted for violations of the deviant sex statutes see: Honselman v. People, 168 III. 172, 48 N.E. 304 (1897); People v. Doggett, 83 Cal. App. 2d 405 (1948). Cases which have applied CAL. PEN. CODE § 288a to heterosexuals are; People v. Coleman, .53 Cal. App. 2d 18 (1942); People v. Miller, 27 Cal. App. 2d 722 (1938); People v. Briley, 9 Cal. App. 2d 84 (1935); People v. Jordan, 24 Cal. App. 2d 39 (1937) (which applied to a third party assisting in the act). In comparing the enforcement of these laws against heterosexuals and homosexuals, authorities agree that though the law makes no distinction between the parties or their relationships, there are relatively few arrests for heterosexual violations when compared to homosexual violations. One reason given for this significant disparity in enforcement is that deviant heterosexual conduct is not viewed with the same distaste as is homosexual conduct by the public. 0. 1971 / Sexual Freedom for Consenting Adults

The real problem encountered even when applying these provisions only to homosexual conduct is the determination of when an act is private and when it is public and subject to enforcement. Distinguishing between public and private sexual acts is elementary when the act is committed within the privacy of one's bedroom compared to an act committed on a public sidewalk. However, the line of demarcation is extremely difficult to establish when the act is committed in a public restroom behind the closed door of a bathroom stall, or in one's bedroom when the window shades are open. Justice Harlan, in his con- curring opinion in People v. Heath,50 attempted to define the line when he said, A man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no inten- tion to keep them to himself has been exhibited.51 When the act is consummated in a public restroom the courts have attempted to use a balancing test-balancing the expectation of privacy against the public's interest in law enforcement. 52 Each case turns upon its own facts and hence no uniform rule can be applied. In People v. Norton53 the court concluded that the question of privacy is eliminated in a situation where there are no doors on the toilet stalls. The questionable situations such as when the enclosure does not go to the floor, or when two men are seen entering the same stall have as yet not been resolved. In Smayda v. United States54 the court attempted to resolve the question of privacy on the rationale that clandestine surveillance is permissible for law enforcement officers if there is probable cause to believe that deviant sex crimes will be committed at the appointed time and place. The argument is that a balancing of the needs of society against the individual's protection would now be based on a practical rather than mechanical distinction. 55 A recent Los Angeles study con- cludes:

BurERFIELD, SEXUAL HARMoNY IN MARRIA E (1955). Note: 13 U.C.L.A. L. Rv. at 689 wherein their research showed that nearly half of the arrests made for deviant sexual violations are for acts that take place in a public restroom. 50 People v. Heath, 266 Cal. App. 2d 754 (1968). 51 Id. at 757. 52 See Smayda v. United States, 352 F.2d 251 (1965), in which the majority concluded that police observations of a public restroom did not constitute unreasonable search if the police, as here, have reasonable cause to believe the public toilet stalls are being used in the commission of a crime and the observation is confined to times when such crimes are most likely to occur. See also Britt v. Superior Court, 58 Cal. 2d 469 (1962); Bielicki v. Superior Court, 57 Cal. 2d 602 (1962) relating to factual questions as to whether or not there was a door on the stall and whether the enclosure extended to the floor. 53 People v. Norton, 209 Cal. App. 2d 173 (1962). 54 Smayda v. United States, 352 F.2d 251 (1965). 55 13 U.C.L.A. L. REV. at 708-718. Pacific Law Journal / Vol. 2

If alternative methods are adequate, there is no justification for the intrusion on the privacy of innocent persons that necessarily results from clandestine surveillance. Expediency alone should not justify such an intrustion. Since patrols by uniformed and plainclothes officers are not only available alternatives but apparently more efficient ones, a policy allowing clandestine surveillance may not be justified.56 One example of proper use of this method under the Smayda rule would be to allow observation for limited periods of time (e.g., between the hours of 10 and 12 p.m.) in public restrooms reasonably believed to be meeting places of homosexuals. However, close judicial controls are necessary to ensure the minimal amount of infringement on the right to personal privacy of innocent parties using the public toilet. Though the law is limited in application to public conduct and the conduct referred to is primarily homosexual, there is still a more limiting factor evidenced from application. That is, there exists a significant difference between arrests of the male homosexual as compared to the female. Authorities have demonstrated that the laws are not enforced against the female homosexual as rigidly as against the male.57 One explanation that has been offered is: Lesbians are described by the police as less aggressive and promiscuous than males; they do not constantly seek new partners and contacts. As a result. . female activity is much less conspicious than that of males and less likely to offend the public. s This discriminatory practice also occurs frequently in governmental agencies. A recent article in Time Magazine revealed that, "While it (Civil Service Commission) ignores most violators of fornication laws, it investigates male homosexuality more often than lesbians, whom the commission regards as less repugnant to the public."' 0 Moreover, because women are outwardly less aggressive than men, society is more willing to accept female homosexuality. 0 Because of female passive- ness, bars, parks, public toilets, and bath houses are not used by the woman deviate as they are by the male deviate. 1

56 Id. at 712. 57 13 U.C.L.A. L. REv. at 740; Cantor, Deviation and The Criminal Law, 55 J.C.L. 441 (1965); Gay World 167, 175-176. 58 13 U.C.L.A. L. REv.at 740. 59 A PuritanicalGovernment, TIME, April 27, 1970, at 60. 60 Society puts much less of a burden on a lesbian than on a male homosexual couple. It is much less likely to suspect a sexual involvement between two women who are living together or who are known to be (at least socially) intimate. GAY WORLD, 175-176. 61 GAY WORLD at 167. 1971 / Sexual Freedom for Consenting Adults

One should not assume that the disparity in chargeable offenses between female homosexuals and male homosexuals is the result of the nonexistence of a significant female homosexual population. A recent study of 1200 females revealed that one-half had experienced intense emotional relations with other females, and over 300 reported having had sexual activities with other women. 62 The 1948 Kinsey Report concluded that 20 percent of the total white female population have had some overt homosexual experience prior to age forty-five.6 3 An examination of a similar study concerning the male population reveals that 37 percent of all white males have experienced at least some overt homosexual experience to the point of orgasm between adoles- cence and old age. 64 Twenty-five percent of those surveyed had experienced more than incidental homosexual conduct while between the ages of 16 and 55; 15 percent had at least as much homosexual as heterosexual experience (bisexual); and 10 percent of the males surveyed were characterized as exclusively homosexual. 65 A permissible inference derived from these studies would be that since males and females have similar experience patterns concerning homosexuality both sexes should have relatively similar populations of homosexuals. Yet female homosexuals are a very small part of the incidence of chargeable criminal sexual conduct. Possibly the reason is that although the behavior is the same and the rate of the acts are the same, the conduct is different, i.e., the male's acts are public while the female consorts in private. The difference in conduct then could result in the difference in chargeable violations. Hence, the primary target of the statutes prosecuting deviant sexual conduct is essentially the male homosexual.

Apprehending the Offenders In addition to the unequal enforcement problems encountered, consensual deviant sexual acts do not involve a complaining victim. In most crimes the police do not arrest in the absence of a complaining victim simply because they have no method of determining a crime has in fact been committed. Therefore, in the absence of a complaint, the police must catch the violator in the act of committing a criminal violation. Various methods are used by the law enforcement officers to enforce deviant sex acts, the most common of which is the "decoy" method. Usually a pair of plainclothes police officers work together.

62 M. PLOSCOWE, SEX AND THE LAw, 204-206 (rev. ed. 1962). 63 KINSEY, FEMALE at 490. 64 A. KINSEY, W. POMEROY & C. MARTIN, SEXUAL BEmVIOR IN THE HuMAN MALE 650 (1948) [hereinafter cited as KINsEY, MALE]. 63 Id. at 650-651. Pacific Law Journal / Vol. 2

One officer positions himself nearby, while the other loiters near a public toilet known to be a meeting place for homosexuals. 6 This method, though effective, invariably invites the defense of entrapment. 7 The defense arises on the rationale that the crime would not have been committed but for the conduct of the "decoy" and that such encouragement is against public policy.' The validity of the defense depends upon whether the intent to commit the crime originated in the mind of the defendant or was planted in his mind by the officer's words, conduct or both. The prosecution, in an attempt to nullify the defense, can argue that the pre-existing criminal intent of the defendant can be inferred from the readiness of the defendant to submit to the inducement. 69 The problem incurred, when the entrapment defense is raised, is that the offense hinges upon the officer's word against that of the defendant unless the officer's partner is present at the time of the solicitation.7" An additional problem can exist when the decoy method is employed. On occasions the homosexual is abused by the police. Examples of such abuses are when the arresting officer allows the homosexual to commit a sex act with him before he identifies himself and when the officer gives the homosexual a choice of oral copulation with him or being arrested. 1 Another frequently used method of enforcement is the "peep-hole" or observation technique. 72 This method is usually employed in public restrooms. An officer locates himself in such a manner that he can readily observe a public toilet for a long period of time. The peep-hole method itself may be challenged as unconstitutional because indiscrimi- nate use would constitute an unreasonable search in that it involves in- vasion of the personal right to privacy. 73 As previously mentioned, there is a "gray area" involved when determining whether an act is public or private.

60 13 U.C.L.A. L. REv. at 686: Out of 475 misdemeanor arrests, 243 were by the decoy method. 67 Schwartz, Morals Oflenses and the Model Penal Code, 63 COLuM. L. REv. 669, 676 (1963). 68 People v. Benford, 53 Cal. 2d 1 (1959). 69 Id. at 12. 70 For complete analysis see 13 U.C.L.A. L. REV. 690-707. 71 GAY WORLD at 88 where it was pointed out that: Homosexuals sometimes allege that police officers will arrest them and then either make a deal with the homosexual in which he has the choice of either orally copulating the officer or being arrested, or, more diabolically, will entice the homosexual'into orally copulating him before revealing his identity, and then will arrest him anyway. See People v. Spaulding, 81 Cal. App. 615 (1927). 72 13 U.C.L.A. L. REv.at 707-718. 73 See note 52 supra, and the discussion relating to the court's attempt to distinguish between public and private acts. 1971 / Sexual Freedom for Consenting Adults

A less frequently used method of enforcement is that of routine patrol, harassment, and revocation of licenses of establishments that cater to the homosexual. Liquor licenses can and have been revoked because the bar caters to homosexuals. 74 The official reason for revocation of the liquor license given by the State Alcoholic Beverage Control is generally not the actual reason for such action .7 This method is intended to discourage homosexual activity. Needless to say, it also raises constitutional questions concerning equal protection. If it can be shown that the harassment is directed towards homosexuals solely because they are homosexuals, such harassment can constitute a violation of the equal protection clause.76 The victim, however, must show that the revocation was arbitrary, selective, and the result of intentional discrimina- 7 tion. 7

THE PROBLEM-SHOULD SEXUAL DEVIATE BEHAVIOR BE LEGISLATED AGAINST?

What are the causes of Homosexual and Heterosexual deviant behavior? Early theorists regarded homosexuality as an anomaly "... due to some congenial quirk or due to a form of dissipation during life."178 Modernly many authorities regard homosexuality as purely emotional arising from "mental conflicts encountered during childhood."79 Whether or not homosexuality is a sickness appears to be an unresolved question." One of the authorities who believes that homosexuality is related to emotional disorder is Dr. Irving Bieber who contends that homosexuality is a result of the family environment. Though oversimplified, the cen- tral point of his thesis is that homosexuality results from an overbearing mother and a passive father. From early childhood the mother favors the child and takes away any identity he would normally develop toward masculinity. This repression later creates an inability on the part of the

74 13 U.C.L.A. L. REv. at 725-734. 76 Id. 76 Yick Wo v. Hopkins, 118 U.S. 356 (1886); People v. Darcy, 59 Cal. App. 2d 342 (1943) (dissenting opinion). 77 People v. Utica Daw's Drug Co., 16 App. Div. 12, 225 N.Y.S.2d 128 (1962); People v. Harris, 182 Cal. App. 2d 837 (App. Div. Super. Ct. 1960). See also U.S. Study Calls for New Homosexual Laws, San Francisco Chronicle, October 21, 1969, at 1, where Evelyn Hooker a psychologist from UCLA concluded: There is evidence to indicate . . ., that existing laws are selectively enforced and that serious injustice often results. 78 Cantor, Deviation and the CriminalLaw, 55 J.C.L. 441 (1964). 79 Id. at 442. 8o See SYMONDS, A PROBLEM IN MODERN ETHIcs, reprinted in CORY, HOMO- SEXUALITY, A CRoss CULTURAL APPROACH (1956); CARPENTER, THE INDETERMINATE SEx, also reprinted in CORY; ROBERTIELLO, VOYAGE FROM LEsBos (1959); BERGLER, HOMOSEXUALrrY (1956). Pacific Law Journal / Vol. 2

child to relate sexually to women.81 Many would argue that homosexuality is a curable disease. Studies have indicated that the only aspect of homosexuality that can be cured is that found in the bisexual. A bisexual is distinguished from a homosexual in that a homosexual has sexual contact only with persons of the same sex, and a bisexual has sexual contact with persons of both sexes. The latter have occasionally been cured by psychiatric treat- ment, whereas the "true" homosexual is not curable.8 2 Hoffman, in The Gay World, argues that the primary reason the disease concept is popular is that it presents an escape when rationalizing homosexuality and its place in society. He contends that the disease concept: offers a way out in conceptualizing the problem. People don't like to think of homosexuality as sinful any longer, because the whole concept of sin has gone out of Western culture. To describe homosexuality as morally evil is now unfavorable. And yet the alternative, considering it as a legitimate way of life for some people, is simply not palatable to very many. Hence, the popularity of the disease concept. If homosexuality is labeled an illness, we can avoid these other alternatives. We don't need to blame the homosexual, and yet we don't have to accept him. He is simply sick and hence, what we really want to do is find a way of curing 3 him.8 Like the causes of homosexuality, there is no clear explanation for heterosexual deviant behavior. What was considered perversion 50 years ago would today be a "normal" sex act. Modern insights into human behavior have radically changed society's views on the subject of perversion. Marriage manuals and sex education materials stress

81 GAY WORLD at 148: Bieber's characteristic homosexual-producing mother is over-close and over- intimate with her son. She is very much afraid of losing the son and thus is possessive, and this possessiveness results in a kind of demasculinization of him. She favors that son . . . over her other children and often over the husband as well, and encourages an alliance with him against the father, so that the son is alienated from masculine identification. She is herself puritanically sexually frigid but, on the other hand, her closeness stimulates the son sexually so that he is aroused and at the same time inhibited in the presence of a woman. This is a crucial factor in his later inability to relate sexually to women, for as a child he has to severely repress his overaroused heterosexual feelings. See also Parent Pattern of a Homo, San Francisco Chronicle, November 6, 1969. 82 Cantor, Deviation and the Criminal Law, 55 J.C.L. 441 (1955); ERNEST VAN DEN HAAo, NOTES ON HOMOSExUALITY AND ITS CULTURAL SETrING 297 (1963): Many homosexuals are neurotic or psychotic and seek the help of analysts, as do many heterosexuals. It does not follow that homosexuality itself is an illness--that it is always associated with clinical symptoms . . . of disturbance. See also GAY WORLD at 197 for a discussion relating to the average cost to cure a bisexual. 83 GAY WORLD at 196. 1971 / Sexual Freedom for Consenting Adults

"natural" freedom and conclude that ". . . no act of intimacy that brings pleasure to both members of the mating should be considered improper or taboo."84 It can reasonably be inferred that the sexual behavior of contemporary adult society has changed markedly during the last decade. Modem social norms of sexual conduct may not permit the identification of "deviant" sex conduct at least with regard to conduct between consenting heterosexual adults. 88 (This statement as- sumes the exclusion of the problems encountered with sadistic, or masochistic sexual conduct and sexual conduct with minors as noted above).86 In final analysis, there is really no certainty as to the causal factors which make up a deviant sexual behavior pattern, whether homosexual or heterosexual. Though it goes without question that some of the subject conduct is brought about by psychological defects and is no more the proper object of penal sanctions than insanity, the overwhelm- ing percentage of persons who engage in such conduct cannot be simply classified as ill. Hence, it cannot be soundly argued that deviant sexual behavior is an improper object of criminal sanctions as with alcoholism or narcotic addiction. Constitutional Problems Encountered By The Present Statutes. In- volved in any constitutional question relating to state regulation is the determination of whether the due process guarantees of life, liberty and property prevent such regulation. A police power regulation does not conflict with these fundamental rights guaranteed by the fourteenth amendment so long as the regulation is reasonable, not arbitrary or discriminatory, and pursuant to a substantial state interest." It is fundamental that state regulation and control of individual conduct which is harmful to society in general is a proper purpose and not in derogation of the concept of "liberty". 88 Some would argue that deviant sexual conduct is an affront to the moral integrety of society; destroys the meaning and purpose of sex; and undermines the basic concept of marriage and family. Additionally, it may present a serious threat to the well being of children and constitute a public nuisance for adults.

84 Id. at 212. See also 0. BUTTERFIELD, SEXUAL HARMONY T1,MARRLGE (1955). 85 O.BUTTERFIELD, SEXUAL HARMONY I MARRIAGE (1955); D. REUBEN, EVRY- THING You ALWAYS WANTED TO KNOW ABOUT SEX (1970). 88 This comment makes no attempt to advocate legalization of deviant sexual acts (heterosexual or homosexual) involving masochistic or sadistic behavior or with parties lacking capacity to consent. 87 Lochner v. New York, 198 U.S. 45, 48 (1905). 88 Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong .... Pacific Law Journal / Vol. 2

Hence, state regulation of deviant sexual conduct is for the health, safety and welfare of its citizens and has a reasonable relationship to a proper state interest. However, it can be argued that not all deviant sex conduct presents a direct harm to the health, safety and welfare of society. Consensual sex conduct, whether deviant or not, carried on within the private domain of the individual participants would seemingly present very little harm to the welfare of society and may even be protected from state regulation under the constitutional right to privacy.89 Although the right of privacy is not specifically enumerated in the Constitution, the Court has used two theories to identify privacy as a constitutional right. The foremost argument set forth has been that the right of privacy is a penumbial part of the Bill of Rights.90 In other words, within the specific guarantees in the Bill of Rights are overlap- ping implied guarantees which come together to form a right of privacy. A second interpretation holds that the right of privacy is a fundamental constitutional right implied in the ninth amendment. To hold that a right so basic and fundamental and so deep-rooted in our society. . . may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.91 Since the interest of a state in protecting or preserving the foundations of marriage and the family are not sufficiently compelling to justify a regulation concerning whether or not married couples could prevent conception during sexual intercourse, it seems even less likely that such interest would justify state regulation of the manner in which married couples engaged in sexual acts. Consequently, so called "deviant" sexual conduct between married couples would be within the protection of the constitutional right of privacy. Arguably the state's interest in preventing promiscuous sexual behavior or the spread of veneral disease may be substantially compelling to justify state interference with private sexual conduct between consenting unmarried adults. Such interference might be in the form of a regulation proscribing deviant sexual conduct. However, there appears to be little if any reasonable relationship between the prevention 89 Griswold v. Connecticut, 381 U.S. 479 (1965). 90 Id. at 484; Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion) (1961); See Beaney, The ConstitutionalRight to Privacy, 1962 Sup. CT. REv. 212 (1962). 91 Griswold v. Connecticut, 381 U.S. at 491 (Opinion of Justice Goldberg) (1965).

222 1971 / Sexual Freedom for Consenting Adults of deviant sexual conduct and the prevention of promiscuity. It seems highly unlikely that individual sexual behavior would tend to become any more promiscuous after engaging in a deviant sexual act than it would as a result of a "nondeviant" sexual act. In addition, it seems unlikely that the spread of veneral disease would be anymore enhanced because of the kind of sexual conduct involved. Logically, the etiologi- cal agents of such diseases are incapable of distinguishing the manner in which the human bodies come together for sexual enjoyment. 2 There- fore, it would appear from this reasoning that there is little if any reasonable relationship between the state interest and the prevention of deviant sexual conduct. If the right of privacy discussed by the Court in Griswold v. Connecticut9 3 extends to consensual sex conduct between adults, whether married or not, when the conduct occurs in private, state interference with that conduct could only be justified if based on an overriding, compelling state interest. Prevention of promiscuity or spread of disease would not appear to be such overriding interests. It seems from the outset that the state's interest in protecting its citizens from exposure to morally indecent or distasteful conduct would not justify interference with private deviant sexual conduct between consenting adults since this conduct would not be susceptible to public observation. Consequently, absent some other compelling state interest not yet discussed, it would seem reasonable to conclude that private sexual conduct between consenting adults, even if deviant, is protected by the Con- stitution from state interference. Based on the above reasoning, any legislative sanctions imposed to prohibit deviant sexual conduct would necessarily be limited to regulation of public conduct. The interest justifying such regulation would be the interest of the state to protect its citizens from unwanted exposure to morally degrading and indecent acts. Such public exposure would most likely not be protected from state interference by any right to privacy since it cannot reasonably be intended as private. Incarceration. The statutes in California and other states intending to define the permissible range of sexual activities often impose harsh pen- alties for conviction of deviant sexual conduct. 94 Seven states including California place no maximum sentence on convictions for sodomy, and

02 UNITED STATES PUBLIC HEALTH SERVICE, MANAGEMENT AND CONTROL OF VENEREAL DISEASE (1960). 93 Griswold v. Connecticut, 381 U.S. 479 (1965). 94 KINSEY, FEMALE 483: There appears to be no other major culture in the world in which public opinion and the statute law so severely penalize homosexual relationships as they do in the United States today. Pacific Law Journal / Vol. 2 permit a life sentence." Thirteen states provide for a maximum sentence of 20 years or more"0 and eighteen states impose a 10 to 15 year maximum.97 Incarceration as a method of deterring deviant sexual conduct seems inappropriate and questionable since the cost of imprisonment outweighs the social harm created by such "offensive public conduct," and plac- ing homosexuals in an all-male or all-female environment is conducive to further homosexual behavior.98 Imprisonment acting as a deterrent on other possible offenders has little effect. However, Cantor suggests that "to the extent that some may dabble casually in such activity (deviant sexual acts), the law may have a deterrent capacity, since the desire is, by definition, not a drive but a curiosity." 99 There being no victim in a consensual deviant sex act between two adults of the same sex there is little justification for punishment of this conduct on the theory of retribution. The only possible social interest served by imprisoning the violators is predicated on the theory of restraint to safeguard the right of society to be free from offensive conduct carried on in public. This right to be free from exposure of such offensive conduct must be balanced against, and is arguably outweighed by, the cost of incarceration. 100 A final argument for imprisonment of the deviant sex offender, particularly the homosexual, is rehabilitation. Rehabilitation must begin with the desire of the actor to change, not the desire of society to change him. This paramount factor is typically not present in the consenting male or female homosexual.'' Without this desire all efforts would seem meaningless. Conclusion In the area of deviant sexual conduct, it is time for the legislature to revise the laws to conform with the area where it has a legitimate purpose for regulation, i.e., to preserve public order and decency, to pro-

95 Missouri, Montana, Nevada, New Mexico, Idaho, California, New York (1st degree only). 13 U.C.L.A. L. REv. at 663. 90 Ohio, Minnesota, Nebraska, New Jersey, North Carolina (60), Hawaii, Ar- kansas, Arizona, Massachusetts, Rhode Island, Utah, Connecticut and Florida. Id. 97 Texas, Wyoming, Indiana, Mississippi, North Dakota, Alaska, Colorado, Maryland, Tennessee, Washington, West Virginia, Iowa, Illinois (only for noncon- sensual acts), Oregon, Pennsylvania, South Dakota, Georgia, Alabama. ld. 98 13 U.C.L.A. L. REv. at 790, et seq. 99 Cantor, Deviation and the CriminalLaw, 55 J.C.L. 441, 448 (1964). 100 Proceedings of the Sentencing Institute for Superior Court Judges, 45 Cal. Rptr. appendix at 25 (1965); 13 U.C.L.A. L. REv. 789, n.102, states that the daily cost of incarceration is 9 times the cost of supervision of the same person on probation. 101 BERGLER, HOMOSEXUALITy (1956). 1971 / Sexual Freedom for Consenting Adults tect society from offensive and injurious conduct. The legislature must recognize the distinction between laws that actually affect the above purposes and laws which intervene without justification in the private lives of persons whose conduct does not harm society. As the Wolfen- don report concluded: [T]here must remain a realm of private morality and immorality 10 2 which is, in brief and crude terms, none of the law's business. Enforcement of laws proscribing private sexual conduct between adults may clearly violate the constitutional rights of those against whom enforcement might be attempted. Statutes that now have the affect of proscribing conduct that is beyond the scope of the legitimate purpose should be removed from the books. Thomas T. Couris

102 HOME OFFICE SCOTTISH HOME DEPARTMENT, REPORT OF THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROsTrrIUnON (Wolfenden Report) 24 (1957).